Paul Kunkel, left, and Robie Waganfeald in Costa Rica on part of a seven week trip that ended with their misdemeanor arrest in New Orleans on August 27, 2005.Enlarge

NEW ORLEANS — A federal appeals court on Monday threw out a jury’s award of more than $650,000 to two Ohio tourists who were arrested in New Orleans on public drunkenness charges two days before Hurricane Katrina’s landfall and jailed for more than a month after the storm.

A three-judge panel from the 5th U.S. Circuit Court of Appeals ruled that Orleans Parish Sheriff Marlin Gusman didn’t falsely imprison Robie Waganfeald and Paul Kunkel Jr., both of Toledo.

The men’s lawyers argued during an October 2010 trial that they were entitled by law to be released within 48 hours unless probable cause was found to keep them in custody. But the 5th Circuit judges concluded the 48-hour rule was suspended because of the 2005 storm.

"The undisputed evidence in this case compels the conclusion that Hurricane Katrina was a bona fide emergency within the meaning of the emergency exception to the 48-hour rule," Judge Jacques Wiener wrote. "Indeed, if Katrina was not an emergency, it is difficult to imagine any set of facts that would fit that description."

Gusman said the court ruling’s "speaks eloquently."

"Our priority throughout the days and weeks surrounding Hurricane Katrina was the safe transfer of more than 6,000 inmates in an unprecedented movement that had never been attempted in the history of Orleans Parish or the state of Louisiana," Gusman said in a statement. "All of those inmates arrived at their destinations without a single fatality or serious injury. "

Lawyers for the Ohio men didn’t immediately respond to calls or emails seeking comment.

After the storm made landfall on Aug. 29, Waganfeald and Kunkel were locked inside the jail without food, water or working toilets as their cells filled with more than two feet of flood water. Kunkel claims he went without water for three days before he resorted to drinking polluted flood water.

The jury, however, rejected the men’s claims against Gusman related to the harsh conditions that prisoners had to endure in the jail.

The judges said the men "suffered terribly" while they were held in custody, but decided their claims against Gusman and one of his chief deputies, William Hunter, should have been dismissed. They remanded the case back to the district court with instructions to enter a judgment in favor of Gusman and Hunter on all of the plaintiffs’ claims.

The jury awarded Waganfeald and Kunkel a total of $459,300 for their claims that Gusman falsely imprisoned them. They also awarded each plaintiff $100,000 for their claims that Hunter was "deliberately indifferent" to the men’s constitutional rights to call an attorney or relative after their arrest.

Waganfeald and Kunkel, who had stopped in New Orleans on their way home from a cross-country vacation, denied they were drunk when police arrested them on Bourbon Street on the morning of Aug. 27, 2005. They were held on $300 bond but couldn’t arrange for it to be paid because the jail’s phones weren’t working.

The men argued that Hunter should have allowed them to use their cellphones to make calls, but the 5th Circuit said Hunter didn’t act in an "objectively unreasonable manner" in refusing.

"In this case, Hunter faced the security risks that would generally follow from allowing prisoners to use cell phones, which were exacerbated by the emergency conditions that were present during the approach, landfall and aftermath of Katrina," Wiener wrote.

Less than a week after the storm hit, Kunkel was taken to the Elayn Hunt Correctional Center in St. Gabriel, where he developed an eye infection. He was later transferred to the state prison at Angola before he was released Oct. 3. Waganfeald was taken to Catahoula Correctional Center in Harrisonburg and released Oct. 5.

Other inmates who rode out the hurricane in the city’s jail have filed similar lawsuits. At the time of the jury’s verdict, a lawyer for Kunkel and Waganfeald said he believed they were the first to win a Katrina-related award against Gusman’s office.

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